Independent National Whistleblowing Officer for NHS Scotland engagement event: outcomes

1 Introduction

Scope and Challenge of the Independent National Whistleblowing Officer role

1.1 Under the current system there are practical challenges that both Whistleblowers and Health Boards are experiencing in drawing some cases to a conclusion where the whistleblower is not satisfied with the decision-making outcome or handling of the investigation where a concern has been raised. This was also highlighted to some extent in the consultation. It was considered therefore, that in such cases, the INWO role will address this so that potentially vulnerable NHSScotland staff, and ultimately patients, are protected, by providing an effective mechanism for external review where individual NHSScotland staff have a legitimate concern about a Health Board's handling of their case. This would include the application of the local process, decision making, and the outcome. In addition where a whistleblower claims to have suffered detriment as the result of raising a concern, the INWO will also have a role in reviewing the treatment of the individual, and in the longer term, the organisational culture. The intention is to provide closure for the individual and provide learning to improve organisational culture which would bring greater patient and staff safety and increase overall wellbeing.

1.2 To enable more culture change across NHS Scotland it was considered that the INWO will also have a national leadership role, providing support and guidance to Health Boards and promoting high standards in learning, improvement and reporting. The INWO could and would also encourage and promote good practice and highlight any concerns about internal mechanisms.

1.3 As the role is embedded it is possible that themes and recurring issues may emerge across the system. There was general consensus from delegates that the role should have a learner focus approach to cases and be able to act as a catalyst for wider cultural and system change.

Consideration of Statutory Powers

1.4 Delegates were in general consensus that for the INWO to be effective and credible it would be necessary for the INWO to have the statutory powers outlined in the consultation. However, as in the consultation there was a minority view from delegates that sufficient powers already existed in relation to the PIN policy. Therefore how the INWO acted within these powers and the process for doing so needed further consideration and input especially in relation to the PIN policy for NHSScotland. The proposed areas in terms of the considered statutory powers are as follows:

• Take evidence under oath
• Compel a public body to provide evidence
• Report publically on its findings (where appropriate and considerate of confidentiality)
• Make recommendations Report to Parliament when these recommendations are not met
• Where appropriate, refer cases to Health Boards and/or scrutiny bodies/regulators for investigation/re-investigation

1.5 Again, in principle, delegates were in agreement about the potential options identified as potential redress for the individual complainant but felt expectations had to be managed throughout the process for any of the recommendations to bring some closure. The options consisted of:

• An explanation and/or a written apology
• Reviewing a decision
• Reviewing or recommending changes to an internal process
• Improvement to general working practices within the organisation
• Suggesting mediation is considered – where this had not already done so
• Recommending that an investigation should be re-run or that an independent investigation be undertaken

Consideration of what was outside the Independent National Whistleblowing Officer role

1.6 Under the current arrangements, the SPSO cannot investigate matters at their own initiative without first receiving a complaint from the individual. Generally, it was considered that this should also be applied to the INWO role and that the complaint should be raised by the individual member of staff who had raised the concern. Delegates were in agreement that the INWO should not investigate matters on their own initiative. However, a small number of delegates in terms of building trust and confidence within their own Health Boards, raised the question that if the process was breaking down, despite the best intentions of the Health Board, could they have the option of referring the case to the INWO to review matters; or, jointly suggest to the whistleblower that they do so together in order for early intervention. This was especially if independence was proving to be the sticking point as this would allow for that independent scrutiny. This could potentially assist in resolving matters earlier before they become too protracted and relationships break down to the extent that they are not recoverable. This could form part of the exceptional circumstances where relationships and communication as a result is proving fraught and would allow for what could be deemed an appropriate early intervention process.

1.7 Delegates were in general agreement that all local procedures should have been exhausted first and that the complaint should be made within 12 months of the outcome (apart from in exceptional circumstances at the INWO's discretion). However a small number felt that the early interventions identified in 1.6 were worth further consideration.

1.8 There were mixed views from delegates about whether historic cases should be included and reviewed by the INWO. The practicalities of this were further explored with delegates around the potential lapse of time that had occurred. This included staffing changes that could prove difficult in obtaining information as well as the volume of cases potentially making this an unmanageable reality. Delegates who felt they should be included where concerned about the potential loss of learning that could be built into future processes and systems if these cases were not considered. Whether, therefore, there is a separate piece of work that could look at historic cases outside of the INWO role from a learning perspective, and appropriate outcomes shared across the wider system is perhaps worthy of some further consideration.

1.9 In addition there was general consensus the INWO should not duplicate the functions or work of the existing regulatory and scrutiny bodies (including inspections), but that it should have the ability to refer cases or matters from cases to regulators/scrutiny bodies for investigation/re-investigation. In principal despite the agreement and consensus with delegates regarding this they felt it was essential communication was key with all parties involved in the case.